Esposito v The Wilderness Society Inc

[2010] TASSC 21

[2010] TASSC 21

COURT:  SUPREME COURT OF TASMANIA

CITATION:  Esposito v The Wilderness Society Inc [2010] TASSC 21

PARTIES:  ESPOSITO, Anthony
  v
  WILDERNESS SOCIETY INC (THE)  First Respondent
  GOLDSWORTHY, Lyn        )  
  O'LOUGHLIN, Larry            )
  NORWOOD, Rosemary       )  Second Respondents
  AAHLBY, Lena  )
  OLSEN, Christine                   )
  COMMISSIONER FOR CORPORATE AFFAIRS           Third respondent

FILE NO/S:  82/2010
DELIVERED ON:        30 April 2010
DELIVERED AT:          Hobart
HEARING DATE:        22 April 2010
JUDGMENT OF:          Evans J

CATCHWORDS:

Procedure – Costs – Departing from the general rule – Order for cost on indemnity basis – Whether costs should be ordered on solicitor and client basis – Role of respondent's committee and employees in bringing about and concealing the invalidity that was the subject of the proceedings.

Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; Crockett v Roberts (No 2) [2001] TASSC 106; Tasmanian Perpetual Trustees v Bell [2010] TASSC 1; Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412; Re J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers – Western Australian Branch and Building Trades Association of Unions of Western Australia (Association of Workers) [1993] FCA 42 followed.
Aust Dig Procedure [574]

REPRESENTATION:

Counsel:
             Applicant:  D C Rangiah SC
             First and Second Respondents:          C L Pannam QC and S Hay
             Third Respondent:  Not represented
Solicitors:
             Applicant:  Carne Reidy Herd
             First and Second Respondents:          Maurice Blackburn
             Third Respondent:  Submitted to the order of the Court

Judgment Number:  [2010] TASSC 21
Number of paragraphs:  35

Serial No 21/2001
File No 82/2010

ANTHONY ESPOSITO v THE WILDERNESS SOCIETY INC
and LYN GOLDSWORTHY, LARRY O'LOUGHLIN,
ROSEMARY NORWOOD, LENA AAHLBY and CHRISTINE OLSEN
and COMMISSIONER FOR CORPORATE AFFAIRS

REASONS FOR JUDGMENT  EVANS J

30 April 2010

1. On 22 April 2010, I made orders that included declarations as to the invalidity of:

·     a meeting held on 5 November 2009 purporting to be an annual general meeting of the Wilderness Society Inc for 2009;

·     a resolution passed at that meeting re-appointing the second respondents to the Management Committee of the Society; and

·     a resolution passed at that meeting approving an amendment to cl 9.1(b) of the Society's constitution.

1. The purported amendment to cl 9.1(b) increased the number of members of the Society that could require that a general meeting be held from 20 members to 10 per cent of its membership.  Had this amendment been valid, it would have increased the number of members that could call a general meeting from 20 to upwards of 4,500. 

1. The Society and the second respondents did not oppose the making of the above declarations, and the Society did not oppose the making of an order that it pay the applicant's cost of and incidental to these proceedings.  However, the applicant seeks an order that the Society pay his costs to be taxed on a solicitor and own client basis.  The Society objects to this, and contends that the costs should be taxed on a party and party basis.  These reasons relate solely to this issue, that is, the basis upon which the applicant's costs should be taxed.

1. Since the enactment of the Legal Profession Act 1993, s129, the difference in effect between an order for party and party costs and an order for solicitor and client costs has had the potential to be marked.  That section allowed a legal practitioner and a client to enter into an agreement in writing that the legal practitioner be remunerated otherwise than in accordance with the scale of costs that was otherwise applicable under the Supreme Court Rules or the like.  The entitlement to enter into a costs agreement continues, but it is now governed by the Legal Profession Act 2007, Pt3.3, Div5. Where there is such an agreement, it almost inevitably entitles the legal practitioner to charge the client at a higher rate than the rate provided for in the scale of costs that would otherwise have applied. There are also some items of costs that are recoverable when costs are awarded on a solicitor and client basis that are not recoverable when costs are awarded on a party and party basis. In result, a party to proceedings that obtains the benefit of an order for party and party costs will almost inevitably recover less costs than that party is obliged to pay to the party's legal practitioner. As to the ever widening gap that has opened up between the costs payable by a successful party to that party's own solicitors, and the amount recoverable pursuant to a party and party taxation of costs, see the decision of Rogers CJ in Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103. In this case, all the parties have been represented by legal practitioners from the mainland. In these circumstances I have little doubt that an order that the applicant recover his party and party costs would result in him recovering significantly less costs from the Society than he is obliged to pay his legal practitioners.

1. The Supreme Court Rules 2000, r837(1), provides that the fees that a solicitor is entitled to charge are as prescribed by Sch1. However, r837(9) specifies that the Division which contains that rule does not derogate from the discretion and powers of the Court to make such order as to costs as may be just in the circumstances of the case. This recognises that, in such circumstances, the Court may make an order that has the effect of authorising the taxing officer to tax the costs of the successful party otherwise than on the basis of the scale contained in Sch1, for example, on the basis of a costs agreement between that party and that party's solicitor, unless the taxing officer is satisfied that to do so would, in all the circumstances, be unreasonable. See Singleton (supra). 

1. Authorities on costs frequently use terms such as "solicitor and client costs" and "indemnity costs", as if they have a universal meaning and are interchangeable.  This is probably because the principles that govern the exercise of the discretion to make orders to that effect, rather than an order for the payment of party and party costs, are the same.  This does not, however, mean that the effect of orders for the payment of solicitor and clients costs and orders for the payment of indemnity costs are the same.  As to the effect of each such order, it is necessary to pay close attention to the precise terms of the particular order and the circumstances in which it was made.

1. The usual costs order made in favour of a successful party to litigation is an order for party and party costs.  Shepherd J said of this in Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 at 256 – 257:

"In consequence of the settled practice which exists, the Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England."

1. The authorities emphasise that there should be some special or unusual feature about a case to justify departing from the usual order as to party and party costs.  A wide variety of circumstances have been held to warrant such a departure.  One such circumstance is the prosecution or defence of proceedings on what should have been, on proper consideration, understood to be a hopeless basis.  See for example, Crockett v Roberts (No 2) [2001] TASSC 106 par[2] and the cases there cited, and Tasmanian Perpetual Trustees Ltd v Bell [2010] TASSC 1, par[44]. The Court's discretion to make an order of the nature in question is not so circumscribed that it may only be made against an ethically or morally delinquent party, Council of the Municipality of Botany v Secretary, Department of the Arts, Sport, the Environment, Tourism and Territories (1992) 34 FCR 412 at 415, or against a party as to whom a collateral purpose or some species of fraud has been established, Re J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers – Western Australian Branch and Building Trades Association of Unions of Western Australia (Association of Workers) [1993] FCA 42, par[5]. Nonetheless, findings of this nature against an unsuccessful party would increase the likelihood of an order for solicitor and client costs or the like being made against that party.

1. Against the background of the legal principles referred to, I turn to the facts.  The Society is run by a Committee of Management that consists of its Convenor, Secretary, Treasurer and five members, all of whom are elected at the Society's annual general meeting and hold office until the next annual meeting.  Clause 9.1(b) of the Society's constitution provides that a general meeting shall be held "within thirty days of a request (made in writing) made by twenty members".  The Society has about 46,000 members.  During 2009 it became apparent that some members of the Society were dissatisfied with the performance of the Committee and some employees of the Society.  This dissatisfaction prompted members of the Committee and some employees of the Society to take steps calculated to frustrate any attempt by dissatisfied members to change the membership of the Committee.  The culmination of these steps was the holding of a purported annual general meeting of the Society on 5 November 2009, without the knowledge of the dissatisfied members, at which:

·six members of the Committee were re-elected; and

·clause 9.1(b) of the constitution was amended so as to increase the number of members of the Society that could require that a general meeting be held from 20 members to 10 per cent of its membership.

1. The earliest evidence of efforts to the above effect is a letter dated 2 October 2009 from the Society's solicitors to the Commissioner of Taxation advising of the proposed amendment to cl 9.1(b), and seeking the Commissioner's approval of the amendment.  That approval is required by cl 18.3.  The relevant portion of the Society's letter to the Commissioner reads:

"4It is proposed, in accordance with Clause 18 of the current Constitution, that a Resolution be put to the Members of TWS Inc at a General Meeting to amend the Constitution.

5 The proposed amendment to the current Constitution is to, essentially:

a delete Clause 9.2(b) of the Constitution which reads as follows:

'A general meeting of the Association shall be held:

(a)       …

(b)within 30 days of a request (made in writing) made by twenty (20) members of the Association being delivered to the Secretary.';

and;

binsert the following proposed Clause which reflects Section 22A of the Act:

'A general meeting of the Association shall be held …

(a)       …

(b)upon it being called by not less than 10% of the members of the association entitled under the rules of the association to vote at a general meeting.'"

1. The following clauses of the constitution bear on what then ensued.  Of particular significance are the requirements as to the provision of notice of an annual general meeting and the content of that notice:

"9.2     Notice of all general meetings shall be made by placing a Notice of Meeting upon the notice board situated within all premises operated by the Association, such Notice to specify the place, day and time for the holding of the general meeting, and the nature of the business to be transacted thereat.

10.5The public officer must, at least fourteen (14) days before the date fixed for holding an annual general meeting of the Association, cause to be inserted in a newspaper published in Tasmania an advertisement specifying the place, day and time for the holding of the meeting, and the nature of the business to be transacted thereat.

18.2Notice of an intention to propose a resolution to alter a provision of this Constitution must:

(a)be given to the Secretary 21 days before the general meeting where the resolution is intended to be proposed; and

(b)be included in or placed with the Notice of Meeting under Rule 9.2 on the noticeboard situated within all premises operated by the Association; and

(c)be included in an advertisement placed by the Secretary in a newspaper published in Tasmania specifying the place, day and time of the general meeting and the nature of the business to be transacted at the general meeting."

1. Notice of the Society's annual general meeting was published in the Advocate newspaper on 21 October 2009, 15 days before 5 November 2009, the date fixed for that meeting.  The Advocate is based in Burnie in Tasmania and circulates primarily in the north-western area of the State.  The Notice was in the following terms:

"Notice is hereby given of the Annual General Meeting of The Wilderness Society Inc ABN 62 007 508 349 which is to be held at 8.00 AM on Thursday the 5th November 2009 at the TWS offices level 1, Baileys Corner, 143 London Circuit, Canberra City.

To confirm the minutes of the last preceding AGM, to receive from the Committee, auditor and servants of the Association reports on the transactions of TWS Inc during the last preceding year, to elect the Committee of TWS Inc and consider an amendment to the constitution by way of special resolution.

Larry O'Laughlin [sic],

Secretary"

1. In view of the acquiescence of the Society and the second respondents to the declarations I have made as to the invalidity of the meeting held on 5 November 2009, and the resolutions passed at that meeting, it is not necessary to address the bases for that invalidity in great detail.  Suffice it to say that, with reference to the proposed amendment of the constitution, the Notice failed to satisfy the requirement that it specify the nature of the business to be transacted at the meeting, and in addition, the Notice was not placed on all notice boards as required by the constitution. 

1. As to the sufficiency of the Notice to specify the nature of the business to be transacted, I accept the thrust of the following written submissions put before the Court on behalf of the applicant:

"43The meaning of the word 'specify' has been considered in a number of contexts. In Leros Pty Ltd v Terara Pty Ltd (1992) 174 CLR 407 at 423, the High Court held that 'specify' should be understood in the sense of 'mention definitely or explicitly'.

44In Jenashare Pty Ltd v Lemrib Pty Ltd (1993) 11 ACSR 345 at 348, Young J said that:

'[A] notice of a meeting must contain in clear language a full summary of the business with which the meeting is convened to deal. The people receiving the notice must be able to decide whether it is worthwhile them attending or whether they are quite content for the business at the meeting to be dealt with in their absence'.

45In Bancorp Investments Ltd v Primac Holdings Ltd (1984) 9 ACLR 263, a company's notice of its annual general meeting referred to a proposal to 'adopt new articles of association'. The notice described the effect of the new articles but a copy of the new articles themselves was not included. McPherson J found that the notice did not disclose the full effect of the new articles of association and that the notice was invalid. His Honour said at 267:

'The general principle is clear, that a notice, and particularly one that invites the shareholders to alter existing rights and provisions of the articles of association, should be couched in clear terms and that any comments that are given in the form of a circular or memorandum from the board of directors should fully and fairly inform and instruct the shareholders upon what is proposed to be done.  The expression "fully and fairly inform and instruct" is one that is taken from the well known judgment of Long Innes J in Bulfin v Bebarfald's Ltd (1938) 38 SR (NSW) 424 at 433 and has been applied in many cases on subsequent occasions.'

46Similarly, in Devereaux Holdings Pty Ltd v Pelsart Resources NL (No 2) (1985) 9 ACLR 956, Young J said (at 958):

'... one asks what effect will the information provided [in the notice] have on the ordinary shareholder who scans or reads the document quickly, not as a lawyer, but as an ordinary man or woman in commerce or as an ordinary investor. One asks, viewed in such a way, will the information fully and fairly inform and instruct the shareholder about the matter upon which he or she will have to vote?'

47In University of Melbourne; Ex parte McGurk [1987] VR 586 at 590, in a passage directly applicable to this case, it was held:

'As a general proposition it may be conceded that a Notice of Meeting must, if there be such rules of a body, conform with those rules. Should they not do so and unless they are merely directory business purported to be done at the meeting will be treated as void and of no effect. Rules relating to the calling of meetings ordinarily prescribe a requirement for notice relating to date, time and place of the holding of the meeting and the nature of the business to be transacted. The object of such a requirement is self-­evident. Each member of the body is entitled to be given a reasonable opportunity to attend - not only with a view to voting on any particular motion that may be made but with the object of participating in and influencing the deliberations on any particular item of business.

…

The notice would be sufficient if members were alerted to the nature of the problem that was to be discussed and the means for dealing with it - which would include as one of the contemplated possibilities the repeal of Statute 2.31 (that is, abolition of the board) - would be considered. It is true that the notice must give a reasonable intimation of what is to, or may, be considered at the meeting. It should be "a fair businesslike" notice in the circumstances and not be one "likely to mislead": Ryan v Edna Ray Junction Gold Mining Co NL (1916) 21 CLR 487, at p 500, per Isaacs J.'

See also Winthrop Investments Ltd v Winns Ltd [1975] 2 NSWLR 666 at 684-5, Myer Queenstown Garden Plaza Pty Ltd and Myer Shopping Centres Pty Ltd v Corporation of the City of Port Adelaide (1975) 11 SASR 504 at 527-8, Barren v Potter [1914] 1 Ch 895, Lai v Tiao (No 2) [2009] WASC 22 at [522], Bain Co Nominees Ply Ltd v Grace Bros Holdings Ltd (1983) 7 ACLR 777 at 780-781, Re Dorman Long & Co Ltd [1934] 1 Ch 635 at 657.

48In summary, the cases support a number of propositions that are relevant to the application of r.9.2, r.10.5 and 18.2 of the Constitution to the disputed AGM:

(a)     the purpose of the Notice of Meeting was to alert TWS' members to what was proposed, so they could consider the matter 'including forming a view whether or not to attend';

(b)     the requirement that the Notice be given 'specifying … the nature of the business' to be transacted at the meeting imported a requirement for explicitness or particularity in the Notice about the amendment proposed;

(c)     the Notice ought to have given a full and fair account of the proposed resolution;

(d)notification of what is proposed 'is particularly important where a special resolution is in question'.

49It was not enough to say merely that that the meeting was 'To …  consider an amendment to the constitution by way of special resolution.' The Notice of Meeting and the advertisement ought to have stated which rule was to be amended and the manner In which it was to be amended."

1. With regard to the placement of the notice, it seems from the evidence that the Society operates premises at the following addresses:

·57E Brisbane Street, Hobart, Tasmania;

·57F Brisbane Street, Hobart, Tasmania, (this is a separate building from 57E Brisbane Street);

·130 Davey Street, Hobart, Tasmania;

·Level 1, 288 Brunswick Street, Fitzroy, Victoria;

·First Floor, Baileys Corner, London Circuit, Canberra, ACT;

·402, 64/76 Kippax Street, Surrey Hills, Sydney, New South Wales;

·2/134 Boundary Street, West End, Queensland, (this address is commonly referred to as 2/136 Boundary Street as this is on the front door);

·Suite 57, Plaistowe Mews, 102 Sutherland Street, West Perth, Western Australia.

1. In addition to operating from the above premises, it seems from evidence that includes an affidavit of Clare Angela Henderson, the Society's Strategic Projects Officer, that the Society operates from premises described by her as:

·The Adelaide campaign centre;

·The Queensland campaign centre;

·The Newcastle campaign centre;

·The Victorian campaign centre.

1. Michael Joseph Connors, the Society's Chief Operating Officer, said in his affidavit sworn on 10 February 2010 that he placed the Notice on the notice board at Level 1, 288 Brunswick Street, Fitzroy on 20 October 2009, and that he was informed by Herbert Moll, the Society's Public Officer, that on the same date he placed the Notice on the notice board at 57E Brisbane Street, Hobart, and that he was informed by Alec Marr, the Society's Executive Director, that on the same date he placed the Notice on the notice board at First Floor, Baileys Corner, London Circuit, Canberra.

1. I am not in a position to reach a concluded view on whether the Society operates from each of the premises referred to in pars [15] and [16] above.  I am however able to conclude that it operates from each of the following premises and that the Notice was not placed on a notice board in any of them:

·130 Davey Street, Hobart, Tasmania;

·57F Brisbane Street, Hobart, Tasmania;

·402, 64/76 Kippax Street, Surrey Hills, Sydney, New South Wales;

·1/134 Boundary Street, West End, Brisbane, Queensland; 

·Suite 57, Plaistowe Mews, 102 Sutherland Street, West Perth, Western Australia.

1. With regard to the notice placed by Mr Moll at 57E Brisbane Street, I find that it was attached to an Annual Review document and was concealed by that document so as not to be visible to anybody looking at the notice board.  This placement does not satisfy the requirements of cls 9.2 and 18.2(b) of the constitution.  As Jersey CJ observed in Dykyj v Logan and District Services Club Incorporated [2009] QSC 108 at par[15]:

"The purpose of a notice of meeting is to alert the recipient to what is proposed, so that the recipient may consider the matter, including forming a view whether or not to attend.  That is particularly important where a special resolution is in question."

That purpose was not achieved by the placement of the Notice on the notice board in a manner that concealed it.  Patently a document that purports to provide notice of something fails to do so if it is concealed.

1. With regard to Level 1, 288 Brunswick Street, Fitzroy, I reject Mr Connors' evidence that he placed a copy of the Notice on the notice board at those premises.  The evidence establishes that there was no notice board at those premises in October and November 2009, and this evidence is confirmed by an email from Mr Connors dated 15 December 2009 requesting that an administrative officer "organise a notice board for the office".  Whilst there is a notice board in a kitchen area used communally by the various tenants of Level 1, 288 Brunswick Street, the only evidence before me with regard to that area is that it is not part of the Society's premises, and the unchallenged evidence of three deponents is that the Notice was not displayed on that communal notice board.  I find that the Notice was not placed on a notice board in the premises operated by the Society at that address.

1. Each of the second respondents had been a member of the Committee for some time prior to October 2009 and they all attended the meeting on 5 November 2009.  The draft minutes of that meeting record that they, together with Peter Langoulant were re-elected to the Committee at that meeting.  Mr Langoulant resigned from the Committee on 31 December 2009, Ms Norwood resigned on 28 February 2010, and Ms Goldsworthy resigned on 29 March 2010.

1. The subterfuge in relation to the meeting of 5 November 2009 was blatant to the point of dishonesty.  This is demonstrated by the letter, set out below, from Alec Marr, the Executive Director of the Society, to Dr Timothy Seelig, the Campaign Manager of the Wilderness Society Queensland Inc:

"To Tim Seelig, QLD Campaign Manager, TWS Queensland

From Alec Marr, Executive Director, TWS Inc

Tuesday 8 December 2009

Assurances regarding the safety of the TWS Inc Management Committee

Dear Tim,

I refer to your correspondence with members of the TWS Inc National Management Committee.

On 1^st October 2009, you wrote to Lena Aalby [sic] and Rosemary Norwood, as follows:

We write to you as members of TWS Inc.  We have not seen a notice for TWS Inc's Annual General Meeting and understand it is usual practice for it to be held in conjunction with TWSA's annual face-to-face Policy and Planning Meeting.

We would like to know if a date and venue for the 2009 TWS Inc AGM has been proposed, and if not, when we can expect the AGM to be called?

Thanking you for your help,

Kerryn O'Conor
Tim Seelig
Christine Zangari
Julie O'Neill

Sian Thomas

On the 14 October 2009, Rosemary Norwood answered you thus,

Dear TWS Inc members

At this time the NMC has not determined a time for the TWS Inc AGM. Once a meeting date is set you will be informed.

Lyn Goldsworthy, TWS Inc MC Convenor, has referred this matter to me for further correspondence.

Could you please urgently let me know why you wish to know these details?

We've received a number of enquiries recently along similar lines.  There have also been a series of very concerning insinuations and views aired during the last few months, which we are taking very seriously, indicating that staff or volunteers from one or more incorporated TWS entities may be seeking to attend a TWS Inc General Meeting with the intention of removing the current Management Committee.  This adds to a series of actions over the last few months from other entities to attack TWS Inc's stability and reputation, including: a motion of no confidence in myself as Executive Director; calling for the removal of senior staff of TWS Inc from their positions; and two highly confrontational Policy and Planning Meetings in two months.  This general trend is ringing alarm bells within TWS Inc.

As you've sought information on the timing and location of our AGM at a time when a number of others have done the same, and because your request has been made in the midst of an atmosphere of tension and confrontation, and because we have received plausible views that our Management Committee is potentially under threat via an AGM, I would therefore also appreciate an assurance from you that the TWS Inc Management Committee is safe in this regard. Given the volume and increasing tempo of the signs that we are receiving, please consider this as a very serious and urgent request.  I would appreciate a response from you within the next 24 hours.

This commitment will help ease our concerns, hopefully provide an entirely reasonable and innocent explanation, and help us all to move towards rebuilding working relationships between entities wherever they have declined.

The specific assurance I am seeking from you is that:

·You have no intention of attending a TWS Inc General Meeting in the near future in order to vote out the current Management Committee;

·You are not engaging in any activity which is encouraging or assisting others to do this;

·You do not know of any serious and plausible move currently being considered or undertaken by anyone else to pursue this path.

Thanks for your help on this matter, I greatly appreciate it.

You're welcome to phone me to discuss the issue if you'd like to at any time.  I would appreciate having a positive and constructive dialogue with all those currently making similar requests, as a way of clearing up this issue.

Regards

Alec Marr
Executive Director

The Wilderness Society Incorporated."

1. I make the following observations referable to the above:

·     Mr Marr made no reference in his letter to the fact that the purported annual general meeting had already been held on 5 November 2009.

·     Ms Norwood's advice to Dr Seelig on 14 October 2009 that the time for the annual general meeting had not been fixed was in accordance with the response that she was directed to give to him at a meeting of the Committee on 12 October.  The minutes of that meeting record "that a response will be sent to the Queensland request saying 'at this stage we haven't determined a final time for AGM'."

·     The date for the annual general meeting must have been determined by at least 20 October 2009, the date upon which the Notice was placed on some notice boards.  The Notice was published in the Advocate on 21 October 2009.  Notwithstanding that Ms Norwood had written to Dr Seelig advising that once a meeting date had been set, he would be informed, this was not done.  It was not until 22 December 2009 that Dr Seelig was informed that the annual general meeting had been held on 5 November 2009.  That information was provided to him in the following letter from Mr Moll:

"22 December 2009

Tim Seelig

Via email: [email protected]

Dear Tim,

In answer to your correspondence to the TWS Inc Management Committee, the Management Committee has asked me to reply to you as the Public Officer.

The Wilderness Society Inc 2009 Annual General Meeting

The Wilderness Society Inc held its annual general meeting on the 5^th November 2009.

The AGM was called and conducted in complete compliance with the requirements of The Wilderness Society Inc constitution and the relevant Tasmanian legislation.

In addition to the ordinary business of the AGM, as required by the constitution, a special resolution to amend the constitution to bring it into line with the relevant Tasmanian legislation was moved and passed.

This amendment relates to the calling of general meetings of the Society, to the effect that such a meeting can now be called either by the Committee or by a written notice to the Secretary by not less than 10% of the members of the Society.

I hope this addresses your request for information.  If you have any questions or further communication, please contact the Executive Director, Alec Marr.

Yours sincerely

Herbert Moll

Public Officer"

1. On 24 December 2009, the Society received a request for a general meeting signed by 30 members.  The request sought a meeting on 23 January 2010 at the Fitzroy Town Hall, Fitzroy in Victoria.  The request included notice of a resolution that the current members of the Committee be dismissed and that a new Committee be elected.  The request was forwarded under cover of a letter from Carne Reidy Herd Lawyers, solicitors representing some of those 30 members, in which the solicitors advised that their clients did not accept that the meeting held on 5 November 2009 had been held in compliance with the requirements of the constitution, and contended that the meeting and the resolutions passed at it were invalid. 

1. On 4 January 2010, Ms Goldsworthy, one of the second respondents, replied to Carne Reidy Herd in a letter that included the following:

"I can confirm that the 2009 AGM was held on 5 November 2009 in accordance I believe with the constitution. … I do not concede that the elections and resolutions are anything but valid."

Carne Reidy Herd responded advising that the most obvious reason why the meeting was not validly convened was a failure to comply with the notice requirements contained in the constitution.

1. On 28 January 2010, notice was published in the Mercury newspaper in Tasmania of a general meeting of the Society to be held at the Fitzroy Town Hall, Fitzroy in Victoria on Saturday 13 February 2010.  The notice included a statement that the business of the meeting would be to consider a proposal to dismiss the current Committee and elect a new Committee.  The notice was signed by 22 of the 30 members of the Society who had signed the request for a general meeting, forwarded to the Society on 24 December 2009.

1. On 5 February 2010, the Society's solicitors forwarded a letter to Carne Reidy Herd, enclosing a notice of dispute.  The notice challenged the validity of the proposed general meeting on 13 February 2010 and referred the dispute between the Society and the 30 members who had signed the request for the meeting to arbitration.

1. On 5 February 2010 Carne Reidy Herd, on behalf of Anthony Esposito, the applicant in these proceedings, wrote to the Society's solicitors referring to arbitration the question of the validity of the meeting that had been held on 5 November 2009.

1. On 10 February 2010, the Society filed an originating application seeking orders as to each of the arbitrations mentioned above, including an order that pending the hearing and determination of the arbitrations, the respondents be restrained from convening the meeting to be held on 13 February 2010.  The respondents to that application were the 30 members of the Society who had signed the request for a general meeting, and Mr Esposito.  That originating application was accompanied by an interlocutory application seeking a restraining order in the terms sought in the originating application.

1. In support of the interlocutory application, Michael Connors filed the affidavit already referred to, in which he said that the Society rejected the contention that it had not given proper notice of the annual general meeting held on 5 November 2009.  He said that the Society was concerned about the consequences if the meeting was allowed to proceed and a dispute arose as to the Committee that was lawfully authorised to administer the Society.  He said that the Society's annual income included about $12.5M from donations and $1.5M from membership fees, and that donations and membership fees could be adversely affected by the appearance of disorderly governance of the Society. 

1. On 11 February 2010, I heard the Society's interlocutory application and granted the restraining order it sought.  In doing so, I said that there was a very real issue as to whether cl 9.1(b) of the constitution had been validly amended, but that as a matter of common sense that issue needed to be resolved before a meeting, of the nature of that which was proposed, proceeded.  I said that at that stage the appropriate course was to preserve the status quo.  The further hearing of the matter was adjourned to 26 February 2010.  On that date the parties applied by consent for orders that the Society's originating application be discontinued and that the Society pay the respondents' costs fixed at $22,000.

1. On 18 February 2010, the applicant filed the originating application that instituted these proceedings, in which he sought orders including the declarations that I have made which are referred to in par[1] of these reasons for judgment.  On 26 February 2010, I made directions in relation to the progress of this originating application, including directions as to the filing of affidavits by the respondents on or before 19 March 2010, the exchange of outlines of submissions on or before 26 March 2010, and the re-listing of the application for hearing.  It was ultimately re-listed for hearing on 22 April 2010.

1. As already mentioned, on 22 April 2010, the Society and the second respondents did not oppose the making of the declaration referred to.  The first notice that the applicant obtained that these respondents were to take this course was received at 10pm on Tuesday, 20 April 2010.  It is, however, apparent that from at least 13 April 2010 the Society had been proceeding on the basis that the meeting that had been held on 5 November 2009 was, for all relevant purposes, invalid.  Catherine Hoban, the Society's National Fundraising Manager, says that on or about 14 April 2010, the Society commissioned Macquarie Telecom to provide telephone conferencing services for the Society for the purpose of a general meeting of members to be held on Sunday, 2 May 2010 at 4pm in the National Convention Centre, Canberra.  The requests for that meeting, which are attached to an affidavit filed by Larry O'Loughlin, the Secretary of the Committee, are drawn on the basis that a general meeting can be called by 20 members of the Society, that is, pursuant to cl 9.1(b) of the constitution as it was prior to its purported amendment on 5 November 2009.  Documents annexed to an affidavit of Neale Paterson, a solicitor employed by the solicitors for the relevant respondents, show that by no later than 13 April 2010, the Society's solicitors were communicating with the Commissioner of Taxation, seeking consent to proposed amendments to the constitution of the Society. The proposed amendments include extensive amendments in relation to the procedure for the election of the Committee.  The proposed amendments are the subject of the request for a general meeting on 2 May 2010, and a notice published by the Society with reference to that meeting in a newspaper published in each State, the Australian Capital Territory and the Northern Territory.  That notice was published, in all but one instance, on 17 April 2010.

1. Consistent with the declarations that I have made, I find that for all relevant purposes, the meeting of the Society held on 5 November 2009 was invalid.  I further find that from a short time after that meeting at the latest, those involved in the meeting must have been aware of its invalidity, but that the Society maintained that the meeting was valid until such time as it had put in place arrangements for a meeting to be held on 2 May 2010.  I further find that the invalidity of the 5 November 2009 meeting is a consequence of the efforts of those involved to conceal that which was to occur from members of the Society who were opposed to the reappointment of the Committee and were likely to oppose an amendment to the constitution that would make it harder to remove the Committee. 

1. As soon as it was apparent that some of those involved in the Society were maintaining that what had occurred at the meeting on 5 November 2009 was valid, it was incumbent upon the Society to take proceedings of the nature of the proceedings brought by the applicant to put things right.  It would be quite wrong if the applicant was left to bear the legal costs of doing that which the Society should have done.  I accordingly have no hesitation in ordering that the Society pay the applicant's solicitor and client costs.  I have no knowledge of the costs arrangements, if any, made between the applicant and his solicitors.  The applicant resides in Queensland and his solicitors are based in Brisbane.  The Society operates throughout Australia.  The Society's solicitors are based in Melbourne, as are the counsel who appeared for the Society.  In the circumstances known to me, it was entirely reasonable for the applicant to engage solicitors and counsel based in Brisbane and, subject to the taxing officer being satisfied that such arrangements as the applicant has made with his solicitors are reasonable, I consider that it would be appropriate to tax his costs on a basis that reflects those arrangements.